NEWS

​Prime Minister Trudeau's proclamation in the Munk Debate leading up to the federal election in October 2015 that “a Canadian is a Canadian, is a Canadian” was intended signal that there is only one class of citizenship and you will be treated the same irrespective of how you obtain your Canadian citizenship or whether you hold any other nationalities.

The recent changes in the Citizenship Act introduced by the Liberal government worked to remove the provisions from Bill C-24 that reduced the rights of some citizens and allowed them to be treated differently and restored the core principle of equal citizenship for every Canadian.

So, with the Prime Minister's declaration that “a Canadian is a Canadian is a Canadian” is there any difference you will experience based on the way in which you became a citizen? The short answer is yes – your ability to pass along citizenship to your children may be affected by the manner in which you became a citizen.

How can you become a Canadian Citizen:There are a number of ways in which someone can become a Canadian Citizen. These include:

Citizen by birth: in most cases if you are born in Canada you are automatically a citizen by birth

Citizen by descent: if you are born outside of Canada to a Canadian citizen parent, you may become a citizen by descent

Citizen by grant or naturalization: if you apply to become a Canadian citizen upon meeting the eligibility requirements (such as having lived here for the required period of time) you will become a naturalized citizen

There are exceptions to these general categories as well. For example, children born to foreign diplomats are generally not granted Canadian citizenship. Canada also has categories of citizens that come from the definitions and changes in the Citizenship Act from 1947 onwards.

More importantly, in the case of citizenship by descent, not all current Canadian citizens can pass along in the same way and their ability to pass along citizenship to their children will depend on how they acquired citizenship themselves. As of April 17, 2009 the Citizenship Act changed such that if you are born outside of Canada to parents who also obtained their citizenship by descent when they were born outside of Canada, you would not automatically obtain Canadian citizenship. This is in contrast to a child born outside of Canada to parents who are either Canadian citizens by naturalization or born in Canada.

The reason for this one generation limit on citizenship by descent is to prevent automatic passing on Canadian citizenship beyond the first generation for those who obtain citizenship by descent outside of Canada and likely have fewer ties with Canada. However, the fact that you do not automatically become a Canadian citizen is not necessarily the end of the analysis. There may be ways in which we can apply for you to obtain permanent residence status and then subsequently apply for a grant of citizenship. Therefore, how a person acquires citizenship will have a direct impact on his or her ability to pass along the citizenship to future generations.

The analysis of these types of cases can be very complicated and there are many exceptions that should be examined before we can determine if someone is or is not a Canadian citizen. In such complicated cases, you should seek legal advice and work with your lawyer to accurately assess your situation and determine the appropriate course of action.

Even though citizens by descent are limited in their ability to pass along their citizenship, they enjoy the same citizenship rights and privileges in Canada as all other citizens. The beauty of Canada's multicultural society is in its ability to allow people who have arrived at Canadian citizenship through different paths to be treated equally and to live together in harmony.

I cannot meet all the requirements – what should I do?Last week I wrote about the eligibility requirements under the Citizenship Act, including the latest rules that came into effect on October 11, 2017. Today I am writing about some of the questions I have been asked repeatedly: what can I do if I am not able to meet all the eligibility requirements? Do I have any chance to apply? What happens if I apply but my application is refused?

My answer in this situation is that it depends on your circumstances and you should thoroughly research your options before giving up your plans of applying for citizenship. Depending on which of the eligibility criteria you are not able to meet, we can approach the problem in different ways. The information below is with regards to some of the main exemptions to the eligibility requirements but you should always seek legal advice with regards to your specific situation.

1- Physical presence in Canada:You must be in Canada for the required number of days before you become eligible to apply for Canadian citizenship (refer to my detailed article from last week). However, there are some circumstances in which the applicant may not have been in Canada but will still be eligible. For example if you work abroad for the Canadian government or Canadian Armed Forces you do not need to meet the physical presence requirement. Another example is the case of a minor child who has a Canadian citizen parent – such a child can become a Canadian citizen without meeting the physical residence requirement when his or her Canadian parent applies for his or her citizenship.

2- Language ability, and knowledge test and Oath of Citizenship:Applicants between the age of 18 and 54 must meet the language and knowledge tests in order to become citizens. All applicants are required to take the Oath of Citizenship. There are cases in which applicants are unable to meet the language and knowledge test requirements or even understand the significance of taking the Oath of Citizenship.

In some case where applicants have disabilities such as those who are hearing impaired, special accommodations can be in administering the knowledge test to allow them to respond to questions and demonstrate their knowledge of Canada. However, where the applicant cannot to meet the language and knowledge tests due to a medical disorder, disability or condition that is cognitive, psychiatric or psychological in nature, then the citizenship rules allow them to apply for a waiver of knowledge and language requirement.

This is a serious matter and you can only obtain an exemption by providing evidence of your condition in the form of detailed medical reports. The evidence must substantiate the fact that the applicant cannot meet this requirement for citizenship now or in the foreseeable future. These special rules are intended to allow flexibility in deserving cases that do not meet the eligibility requirements.

For example this could include a case where the applicant suffers from a learning disability and therefore cannot provide proof of language ability or undertake the knowledge test. Or it could be the case where the applicant suffers from a cognitive disorder that prevents him or her from meeting the language and knowledge requirements and also prevents him or her from understanding significance of the Oath of Citizenship.

In such cases, the request for the waiver should in indicated from the very first step in the application process and often times these applications can become complicated very quickly. Officers will look at many different factors including the age of the applicant, the personal circumstances, if there are any non-medical hardships that the applicant suffers from and how long the applicant has been living in Canada. The applicant must provide proof with regards to each of these factors and must try to convince the officer that he or she is deserving of a waiver. If you are applying for citizenship for someone in such a situation you should consider obtaining expert legal advice before you start the process to understand the process and maximize their chance of success.

3- Appealing a refusal of your citizenship application It is possible that a citizenship application may be unsuccessful for any number of reasons. For example the officer may find that you were not in Canada for the required number of days or that you failed the knowledge test. What can you do when your application for citizenship is refused?

If your citizenship application is refused you have the right to access judicial review of the decision in Federal Court. If you intend to seek a review of the decision you must act fast. You generally have 30 days from the date the decision letter was mailed to you to commence an application for judicial review by filing an application for leave with the Federal Court.

In order to succeed in your application your application must raise a serious or arguable issue. These are technical legal terms and you should consult a lawyer to fully understand the process and prepare your submissions. If the Federal Court grants “leave” to hear your case, it means they are permitting your case to move forward and there will be a hearing where your legal arguments will be presented to the Court.

If the Federal Court judge denies your application for leave, the application will be dismissed and there is no further right to appeal the Court's decision. If the Federal Court judge grants leave, a hearing date will be set for the court to receive your legal arguments. After the hearing, if the Federal Court judge finds in your favour, they will send the application back to a different citizenship officer for determination.

The rules that govern how and when a person becomes a citizen and can be granted the rights rights, privileges and duties of a citizen are some of the most important rules that define a society. As of 11 October 2017 the latest changes in Canada's citizenship rules came into effect governing the process of applying for citizenship and eligibility requirements.

Once you become a citizen of Canada, there are certain rights that protect you and in return you have certain responsibilities towards your fellow citizens. Your rights include: democratic rights such as the right to vote, language rights, equality rights, legal rights, mobility rights, freedom of religion, freedom of expression, and freedom of assembly and association. In turn, your responsibilities are to: respect the rights and freedoms of others, obey Canada's laws, and participate in the democratic process.

The changes in effect as of 11 October make it easier for immigrants who want to apply for citizenship by reducing the length of time you have to be physically present in Canada in order to be eligible and also narrowing the age group for which language results and citizenship tests are required. According to the new rules:

You must be physically present in Canada for 3 out of the last 5 years with no minimum number of days per year, before applying for citizenship.

If you have spent time in Canada before becoming a permanent resident (as a temporary resident or protected person) within 5 years before applying for citizenship, you can count each day as ½ days, up to a maximum of 1 year (365 days) towards the minimum physical presence requirement.

If you are between 18 years old and 54 years old, you must: (a) Meet language (English or French) requirements and (b) Take the Citizenship Test.​

You have to file Canadian income taxes (if required to do so under the Income Tax Act) for 3 out of 5 years, matching the new physical presence requirement.

The knowledge requirement for those between the age of 18 to 54 means that they have to demonstrate that they have sufficient knowledge of English or French, and must also have adequate knowledge of Canada's history, its geography, its government, and the rights and responsibilities of citizenship.

In addition, in order to be eligible for citizenship you must not be inadmissible for reasons such as criminality or subject of a removal order. Under these circumstances you must seek legal advice to ensure that you are eligible to apply and understand what steps you must take in order to overcome your inadmissibility.

You should also be aware that in some cases it is possible that when you apply for Canadian citizenship you may lose other nationality or citizenship status that you have. Many countries, such as Canada, have no restrictions on dual citizenship. However, some countries such as India do not recognize dual citizenship and acquiring Canadian citizenship can lead to automatic loss of citizenship in that country. It is very important that you check with a lawyer or the embassy of your present nationality to understand if there are any restrictions or additional requirements for dual citizens before you apply for Canadian citizenship.

Over the last few weeks I have written about family reunification in Canada's immigration system. The focus has been on sponsorship of spouses, partners, dependent children and in some cases parents or grandparents. This week I will be writing about the special circumstances in which you may be able to sponsor another family member such as a brother or sister, niece or nephew, aunt or uncle or even grandchild.

Can You Sponsor?In order to be eligible to sponsor certain relatives you have to be:

at least 18 years old,

a Canadian citizen, permanent resident or registered under the Canadian Indian Act, and

must be able to support the family member you are sponsoring financially.

The financial support requirement is intended to ensure you and the family member you sponsor can meet basic needs for food, accommodation and living expenses and that your relative will not turn to social assistance. Therefore you must be able to demonstrate your income level meets the necessary Low Income Cut Off (LICO) and you must provide an undertaking that your relative will not use social assistance for up to 20 years from the time he or she becomes a permanent resident of Canada.

Who Can You Sponsor?There are two groups of family members that you may be able to sponsor: 1. An orphaned close relative:If you have a brother/sister, nephew/niece or grandchild who is orphaned, is under 18 years of age and is single, you can apply to sponsor this family member.2. Other relativeYou may be able to sponsor one relative who is related to you by blood or adoption, irrespective of their age, if you can meet all conditions, including:a) you can demonstrate that you do not have a relative that you could sponsor instead such as a spouse, child, parent or grandparent, brother or sister, uncle or aunt, niece or nephewb) you do not have any of these enumerated relatives who are already Canadian citizens or permanent residents.

For example, if you are a Canadian citizen and do not have any relatives in Canada and are single and without a child, you may be able to sponsor a cousin that is related to you by blood. However, if you are married or have a sibling or other close relative who is a permanent resident or citizen of Canada, you would not be able to sponsor such a family member from abroad. Nevertheless, if you have family members in Canada you may still be able to sponsor an orphaned family member if you meet both the remaining conditions.

Irrespective of whether they are orphaned or another relative, the person you are trying to sponsor must meet the requirements for immigration to Canada. The person will need to undergo medical exams, criminal checks and background checks.

What are your Responsibilities Towards your Sponsored Family Member?Sponsorship applications for family members described in this article currently take on average 33 months to complete. So, what are your responsibilities when your family member finally receives his or her permanent residence and joint you in Canada?

As explained above, you are required to provide a financial undertaking of up to 20 years for the person that you sponsor. Once your family member lands in Canada as a permanent resident there is no way in which you can withdraw your undertaking.

The exact length of the undertaking is determined by the age of person you sponsor and their relationship to you. However, what is clear is that you are financially responsible for meeting the basic needs for your relative for that time. If the relative that you sponsor uses social assistance during the undertaking period you will be required to pay back the amount to the government. If you owe an outstanding debt for the social assistance used by your relative during the undertaking period, you cannot sponsor any other family member until you have paid off your debt.

If you live in the province of Quebec and wish to sponsor a family member, you must also meet the conditions of the province for you to be approved as a sponsor. In addition to signing an undertaking with the province of Quebec, in some cases you will need to undergo additional steps such as a psychological examination if you are sponsoring a child. The requirements of the province of Quebec are in addition to the federal requirements set out above.

And if your family members are not eligible to be sponsored, they may still qualify under another immigration program, such as the skilled worker program, and may still be able to join you in Canada if they submit a successful immigration application.

Note: This information is not intended as legal advice or opinion. You should always seek specialized legal advice with regards to your situation as the facts of each case are unique and the application of law varies in every case.